The Lawyers Collective (HIV unit) facilitated a neat workshop on ‘Sexual Minorities and the Law’ on Sunday, March 10, 2002. The meet was held at Sandeep’s house at Prabhadevi. The meeting at the Press Club with Judges Cameron and Kirby had kindled my curiosity about the courageous legal activism work being done by Indians in the field of sexual minority rights. The workshop, a special Sunday meet apart from our usual meetings, gave us an overview of the present situation and also explored possibilities for creating a more just and equal future.

The meeting started at 5:30 p.m. and carried on till 8:15. Vivek, Veena and Alok who was also the facilitator, represented Lawyer’s collective. There were 33 people present. Alok started by explaining the need for the meeting. Different issues are raised in GB meets and discussed. Many of them hinge on events in our lives, and how we deal with them. Naturally, the laws of the country are binding on us, and we sometimes wonder how we should act, or rather shouldn’t act, in accordance with the laws of our land. The meeting informed us of our rights, or the lack of them, AS sexual minorities – relating to being arrested by the police, harassment and violence, marriage, adoption, and in the context of HIV/AIDS. Lawyer’s Collective (LC) had assessed sexual minority issues they came across and presented them to us. The participants at the meet narrated their experiences, so all in all it was an interesting interactive session. There was a quick round of intros with everyone saying their name aloud.

Then Vivek, looking dapper and contemplative, told us about LC. “We are a group of lawyers working an HIV/AIDS unit. We provide free legal services and advocacy, our scope being HIV. The free services are generally to those who cannot afford them. Since the context is HIV, we do deal with sexual minorities. So we look at the criminalizing laws from the perspective of HIV. We engage with other groups, notably Gay and ‘Males who love males’, when they show an interest. This is in our Bombay and Delhi offices, and in various for a. “

From the Lawyer’s Collective handout:

The main objective of the HIV/AIDS unit is to protect and promote the fundamental rights of people affected by HIV/AIDS. This includes areas such as health care, housing, education, insurance, employment, terminal dues such as gratuity, pension, information and other services. Also the rights to privacy and confidentiality, marital rights relating to maintenance, custody etc. The unit undertakes Public Interest Litigation in areas related to

• Public health issues like access to treatment
• HIV/AIDS education and awareness issues
• Gender issues
• Decriminalization of homosexuality
• Issues related to sexual minorities
• Testing, informational privacy, consent, etc.
• Safe blood supply
• Access to services
• Protection of sex workers.

“You can come to LC if you are gay and HIV positive and are dealing with issues. Though GB is not a formal organization it has played a crucial role in reaching out to people in Bombay, and hence this meeting through Gaybombay.”

“If one has legal issues, where does one go? We must create a system of lawyers sensitive to sexual minority issues. Just like there are doctors and mental health professionals sensitized to sexual minority issues in Bombay today.” This could be a positive fallout of such interactions.”

“The constitution gives us citizens the rights to protect us from the imposing machinery of the State or the Government. The right to equality, life, freedom of speech, expression, to profess a religion and to basically live a full life as a human being. Unjust laws, laws that criminalize homosexual acts transgress those rights of citizens.”

“Where is legal intervention successful? If rights are transgressed? If a private hospital denies treatment to an HIV+ person, for example, nothing much can be done about it. But something can be done if a public hospital does so since laws govern the public domain. And laws like section 377 fall under that domain. For example if your boss in a public sector unit forbids you to write a certain article in a magazine you can challenge it in court and even get the PSU’s rules overturned.”

“What services does LC offer to “sexual minorities that are HIV positives”? Well, firstly we never ask people how they acquired it. We have women coming in for rights of matrimonial property, custody after divorces. Men who’ve been sacked from jobs, denied health care. An example of cases we find ourselves getting: in Delhi a guy chatted with someone on the net. Met him at a restaurant. Went to his place. 4 men barged into the place. Took naked pictures of him and started to blackmail him. So we advised him on how the police work. He hadn’t had sex with the guy. He was married with children. And very afraid of the stigma that would come with the news breaking in the media. So apart from legal services we do advocacy.”

Then LC explained to us about Section 377. [After giving this some thought, I’d prefer not go into the specifics of the explanation, to pre-empt complaints about parallax. This is a transcript of a free-flowing discussion, collated from pen & paper jottings to a Word document. On second thoughts, I have the Lawyers Collective leaflet that Alok distributed in the meeting, so I’ll get that and write it word-for-word.]

Okay here goes:

Section 377 of the Indian Penal Code: ”Unnatural Offences: Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life… 

Explanation: Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.”

{For more information I’d suggest the excellent ‘Humjinsi Report on the rights of sexual minorities in India.” - Sachin}

A) “But where is natural sex defined! Can we say that the law means ‘this’ and not ‘that’?” 

“It’s not. The said acts have been put under ‘unnatural offences’. Anything not producing children. It is an arcane 1860s Victorian legislation.  Bestiality, heterosexual sodomy are also included. The law itself is not about homosexuals but ends up being threatened with use against them.”

B) “So are we to wait till a case comes up in court?”

“Well, yes. One hopes an enlightened judge will clarify in our favor and this will work as a precedent. We look at it from the point of view of the right to life and health. Sexual minorities are organizing everywhere. If NGOs give out condoms to sexual minorities, are they encouraging criminal activity? If we Decriminalize, there won’t be the shame and stigma. Criminalization plays a part in the shame. People are scared. Socially there is a lot of shame.”

C) “But it hardly goes to court! The problem is more social.”

“Decriminalization is necessary to make the STRUCTURES AND SPACES for sexual minorities visible and accessible. For example even with GB there is limited access. There is fear involved. Not everyone on the street can come to GB and partake of its activities. Can someone establish a ‘Gay Café? DOES someone do so? An openly queer film festival?”

D) “Though people may not always be arrested, they are threatened. A lesbian was locked up and intimidated by her family with threats of 377.”

There was some discussion of what happened in Lucknow, in the context of the existing laws. 

E) “Most gays do not know that this law exists. They should know that it does. They should know what they can legally do, and what they cannot. Look at the US, some states have removed sodomy from their list of crimes. Maybe LC should look into how that was done.”

“There are some other sections also, that can be used if not 377. Like Unlawful assembly, mainly for criminal activities.”

F) “But this law is about homosexual sexual acts! Not about being homosexual!”

“But that’s how it could be interpreted.”There was much discussion at this point about NHRC’s response to the petition filed before it, and also about Kiran Bedi’s views on the distribution of condoms in Tihar jail.

G) “The orientation is not wrong, the act is, according to the law.”

“There are some Judeo-Christian laws, and they are connected with these criminalizing laws, which is why the criminalizing laws still remain in some countries.”  

“If a cop enters Voodoos he can use 30 different laws against sexual minorities. Thankfully laws are not used proactively against sexual minorities. Another problem is that there is no political discourse to push the Government to act. Resistance will develop. The ‘closest thing’ to homos is 377. There has to be a social, legal discourse.”

H) “You could compile a list of lawyers we could contact in case of problems.”

“If I have a party at home, can the police come?” “That’s a private case – two consenting adults having sex in the privacy of their house.”At this point the Bowers vs. Hardwick case in the US was discussed. Then there was some talk about 377 itself. “377 protects the boy child. It can put a paedophile in jail. It can either be repealed or read down. If it is about consensual adult sex, it automatically takes the boy child and the paedophile out of it. We can specify some fundamental rights. The right to Euality (which means that a sexual minorities’ person is being treated unequally). The right to Life, which includes the right to health, marriage, privacy and a good environment.”
J) “Let us not repeal it, then protection against boy child sexual abuse will also go. By reading it down, it will be about voluntary consensual adult sexual acts.”

“Even after the court rules that the law is unconstitutional (if it does so) – and declares it to be a void law, Parliament may or may not do anything about the law based on that verdict. But it would be a precedent.” Then Alok, who’s done a study on the cases involving 377 spoke about his findings. “Even after the law came into force over 130 years ago we don’t really know  how many cases were filed. They were not documented. Only cases that went to the High and Supreme Court were documented. There were X case(s), and Y judgment(s). And only Z case(s) where the guys willingly had sex and were put in jail. After <year>, nothing went to court. All cases after that were forced penetration, mostly involving children. If a judge makes an interpretation of the law, it can become a law. The original may be understood in different ways.”

K) “Aren’t we being alarmists?”

“There may have been cases in the lower courts. People may have been harassed. But to catch someone under 377 needs proof to make a case. A medical report among other things is needed. Other laws pertaining to nuisance, misbehavior or indecency can be involved.”

L) “As far as I know, in 20 years, most cops don’t know about 377. Now kissing is not sex but if you are kissing a man on the street, that can be construed as indecency.”

There was some talk regarding rules pertaining to arrests. The Lawyer’s Collective brochure contains the rights of a person when the police arrest them. These were described.

M) “If the state government is hand in hand with the NGOs engaging sexual minorities, in health related work, does that translate to better treatment of sexual minorities by the authorities?”

“NACO, which is kind-of federal, does fund state level NGOs doing MSM related health work so in a Center – State sense, yes it does help.”

N) “If there is a visible gay movement, there will also be an anti-gay backlash.”

“The sex worker movement is visible. So their issues are in the limelight and being discussed and dealt with.” Then there was a big discussion on the recent episode of ‘We The People’ which discussed ‘Homosexuality and Criminalization’. “When the issue of consensual adult sex comes up, even the most rightwing anti-gay types seem to empathize. The upper middle classes in fact seemed quite sympathetic.”

“There is a magazine called ‘Crime and Detective’ that regularly carries pictures of guys in chains being taken away for unnatural sex. With the names of the arresting officers in captions below. Wonder how authentic they are, and if they are, what happens to the guys later.” “Its better not to have such a law looming over one’s head.” “In one case, consent was given importance. Since the abuser was not forceful, the man was given a lesser sentence.” “The degree of harassment is greater for sexual minorities. So often sexual minorities get picked up simply for their faces. “Chalo”, the cop says. And we are hauled in.” 

“How do you get out of it?”

“Taali bajaake. Police ne pakda toh taali bajaaneka. Tell the officer: Mereko kaam karneka. Bhaandi ghaasti main. Jaane do saab. We manage to get people out of the police station. There are a few cases of beating. Very few ask for money. You are picked up at night, spend the night in the lockup and meet the magistrate in the morning.”

Then there was a discussion about what happens if the arrested person encounters force or violence in the jail. The Lawyer’s Collective handout describes the provisions of criminal law to protect the citizen from harassment or violence. And the action that can be taken in case of harassment.

Custodial Rape and the Mathura case were discussed. The Lawyers Collective Leaflets were distributed to all present.  Gaybombay specific issues like parties and webspaces was discussed.

Parties: “If the police come in, and it is a restaurant, nothing can be done.Unlawful assembly can be a problem. But GB parties are places where people eat drink hang around and dance. We have deliberately kept our parties as a safe non-sexual-activity space and that has been brilliantly successful since everyone then feels safe in the long run. Hence GB parties have no darkrooms and the One-Person-At-A-Time-In-The -Loo-Precept to preempt problems. People are not there to have sex, whatever they may do before or after the duration of the party and outside its premises.”

“Licenses, payment of entertainment tax can be issues. The best idea is to have parties in hotels, restaurants and clubs that already have all the permits. But you cannot be immune totally.”

Internet Presence:

“The IT act is here. Like in the IPC obscenity laws can ban books and movies, websites could be banned too. The judge decides what constitutes obscenity. The IT act uses language similar to obscenity laws like ‘immoral’. It has not yet been seen whether they are being implemented. We are still to go through it fully. With the terrorism issues, monitoring the internet has increased.. There is an IT squad, I think.”

“What if the domain name and website are registered abroad?” “The Government may have an extradition treaty with other countries… but nothing is known yet, really.”

“The recent dharna had police permission. We need to have legal help and lawyers to back us up. Though we are not doing anything illegal. The Indian media talks about homosexuality everywhere. That could be construed as obscenity. But its not. For example, Lady Chatterly’s Lover, the novel, was banned many decades ago because it created a sensation and continues to be on the banned list even now. When something is popular or sensational, politicians take notice.”

CIVIL ISSUES: “Many people are blackmailed by hustlers. One solution could be this: tell 2 close friends that you are getting a guy home. Describe him to them. Tell them to call you at an hours interval. Come over to your place after 2 hours if possible. Let the guy you pick up see that. Thus you’re not really alone in it. The risk is lessened.”

Someone narrated an incident involving the tying up and robbing of a foreigner by hustlers in a hotel room. 2 gay guys took the foreigner to the police station and everything was narrated and the cops were quite matter of fact about the whole thing and never were the two guys who helped ‘come under a pink cloud’.

Then Veena talked about adoption rights of sexual minorities. The leaflet has adoption rights for different religions and the requirements and she described them, and the different steps leading to the final adoption.

“What about wills and pensions?”

“Wills are contestable. There is no foolproof was to leave money to a significant other. Common ploys to prevent that are to make the will seem forced or coerced or saying that it was not the last will. Registered wills are more authentic.”

Then there was some discussion about nominating partners and ways to ensure that disbursing entities released pensions to significant others after bereavement, without mischief.

At around 8:30 pm we officially ended the meeting with a round of thanks and applause. What I took away from the meeting was a feeling of empowerment.

Special thanks to Goda and the Udaan panchchis who attended and participated with vigor in the meeting.  Special thanks to Geeta Kumana for the never-say-die spirit that she brings to all the GB activities she participates in.

Many thanks to Veena for her valuable information of the prevalent adoption scenario for sexual minorities.  Thanks to Vivek for his cool handling of diverse, often confrontational viewpoints and questions that popped up.

Thanks to Alok for his deft facilitation and enthusiasm. Many thanks to all the GayBombayites who attended the meeting and participated so fully.